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The high court and the future of the bedroom tax

For full details of the legal cases, see the news item on Leigh Day & Co’s website

Comment by Sue McCafferty

Just how much inconsistency, confusion and hardship do people have to endure before a disastrous policy is abandoned? There were enough early warning signs about the bedroom tax to indicate that it’s deeply, fundamentally flawed. That it won’t work. But the Government refused to listen, so this week ten of those affected, and their families, wait to find out if the High Court will save them from this destructive policy.

Initially there were reports from tenants applying for exemptions, who noticed the anomalies in the legislation: that although a bedroom is allowed if an adult needs an overnight carer, no such exemption exists if a child has the same need. Or that where a bedroom no longer even exists, for example where it’s been used to create a lift or a wet room, the tenant can still be told they’re under-occupying. Or that, despite the Court of Appeal judgement in the Burnip, Trengove and Gorry case, the rule that provision should be made for disabled children who can’t share a room is not being consistently applied.

Housing associations are already reporting the accumulation of arrears. Many tenants are already in debt and have had to borrow money from family and friends. Delays as local authorities sift through piles of discretionary housing payment (DHP) applications push tenants further into arrears. There is confusion and regional disparity, with some local authorities including disability benefits as available income and others not.

Disability living allowance (DLA) in particular has become the new ‘rent money’. In the population as a whole 10% are in receipt of DLA, but among tenants affected by the bedroom tax this proportion rises to over a third. Despite the Burnip judgment, in which the judge gave clear advice that disability benefits should not be used for rent, chronically sick and disabled tenants report that their DLA is being included in income assessments by local authorities and their expenditure ruthlessly scrutinised. We have evidence to indicate that the inclusion of DLA as income available for housing costs is widespread and systematic and is being used as a reason to deny disabled tenants DHP.

In some councils it seems the higher the DLA the less likely they are to offer a DHP. Tenants are being told their DLA award takes their income above the level at which a DHP would be considered and they should use part of their allowance to pay the bedroom tax – despite the fact that DLA is awarded for care and mobility costs, not housing needs. Not only is this ethically questionable, but it is also highly problematic for anyone who faces losing all or part of their DLA entitlement when assessed for Personal Independence Payment (PIP), as their home will also be at risk. No PIP = no money for rent shortfall = no housing. The fear and anxiety this generates cannot be overstated.

Despite Government assurances that extra funds would be added to the DHP ‘pot’ for disabled tenants with significant adaptations, tenants with such adaptations are having their applications for DHPs turned down. Local councils, bound only by ‘guidance’, can choose who receives an award; there is no guaranteed entitlement, no matter how great the need. Tenants are being advised to economise by abandoning their landline or their car or by saving on travel costs to hospital appointments. The scrutiny of outgoings is intrusive and insensitive and takes little account of the additional expense that arises from being sick or disabled where, for example, heating may need to be on for longer or a special diet leads to higher grocery bills.

Any notion that the £25 million in DHPs would mitigate the loss of the £400 million ‘saving’ being clawed back from the pockets of tenants should have been condemned months ago. Again, the Burnip judgment made it clear that DHPs should not be used as mitigation or justification for policies that have a disproportionate effect on people from a protected group (in this case chronically sick and disabled people).

We have received emails from a number of worried tenants whose local authorities have made alarming decisions about their overall housing benefit entitlement including, in some cases, where there should be an exemption for an overnight carer. It is common to hear of appeals being actively, and unlawfully, discouraged.

The stark poverty resulting from the bedroom tax should have made it unthinkable. Housing benefit still operates as a tapering benefit according to how much is earned or saved. Those solely dependent on benefits are still entitled to ‘full’ housing benefit – now minus the bedroom tax. The absurdity of expecting money from those who’ve been assessed as most in need should have meant the policy never saw the light of day.

There has been little or no professional help or advice for tenants. Much of the support has been online, from sources such as Joe Halewood’s blog, Facebook and Govan Law Centre in Glasgow. Individuals and grassroots campaigners have shown the way in supporting tenants, and the forthcoming Judicial Review takes inspiration from the stamina and courage shown by the Burnip, Trengove and Gorry families in their fight against similar discrimination in the private rented sector.

We hope the justice system will bring about change; bring common sense and fairness back into an arena where notions of poverty, disability, equality and adequate housing have been distorted to fit Government reforms. Much of the debate has turned on discussions of the space someone might ‘deserve’ – for example due to their disability – but there has been little recognition of the fact that the poverty is the same, whether your illness or disability requires adaptations or extra space or not.

Someone with terminal cancer or a mental health condition may not need physical adaptations but will be impoverished by this policy just as much as people with other, more ‘obvious’ types of impairment. Similarly, our understanding of disability and chronic illness must recognise that some conditions deteriorate; that help, care and adaptations may be needed in the future even if they’re not be needed now. Shunting people into homes that ‘fit’ them right now denies the reality of life itself.

In its report, ‘Fulfilling Potential: Building a deeper understanding of disability in the UK today’ (February 2013), the Government recognises that only 2- 3% of disabled people are born with their impairment; most illness and disability occurs later in life. 79% of disabled people over state pension age report that they acquired their impairment after the age of 50. This is echoed in the age profile of many affected by the bedroom tax. Illness and disability are part of life. Family structures are organic: they change, evolve; the caregiver becomes the cared for; grandparents look after their grandchildren while parents work; adult children move back home. Many would love to downsize, in time, to the right place, with assistance.

The bedroom tax is causing harm. It will continue to cause harm. It will continue to exacerbate tenants’ mental and physical health problems. These are not temporary teething troubles that will be smoothed over; impoverishing people will drive them deeper into debt and despair.

This is an aggressively destructive and malignant policy; it is rotten in its conception, its design and its consequences. It’s time to abandon it. We just have to hope the judges agree.


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